After a failed bid to internationalise the dispute over Kashmir at the United Nations Security Council (UNSC), Pakistan has now decided to take the matter to the International Court of Justice (ICJ), according to its foreign minister Shah Mehmood Qureshi.
Speaking to ARY News TV, Qureshi said, “We have decided to take Kashmir case to the International Court of Justice," adding that the decision was taken “after considering all legal aspects."
Ever since India revoked special status for Jammu and Kashmir by abrogating Articles 370 and 35A, Pakistan has vociferously opposed India, with Prime Minister Imran Khan stating that he would become a ‘global ambassador’ for Kashmir.
On August 16, the UNSC held informal “closed-door” consultations on Kashmir on Pakistan’s request. The consultations did not result in a UNSC statement, with India using the meeting to state that the matter was entirely an internal one.
At the time, India’s Permanent Representative to the UNSC, Syed Akbaruddin, said, “The recent decisions taken by the government of India and our legislative bodies are intended to ensure that good governance is promoted and social-economic development is enhanced for our people in Jammu and Kashmir and Ladakh.”
The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. In the past, the ICJ had taken India’s side in the case of Kulbushan Yadav, a former Indian Navy officer who Pakistan arrested and was about to award the death penalty to. In a diplomatic victory for India, the ICJ asked Pakistan to review the sentence.
Does the ICJ have jurisdiction in the Kashmir dispute between India and Pakistan?
The next step will depend on whether the ICJ has jurisdiction in this matter. According to Shiju Mazhuvanchery, a professor at Christ Academy Institute of Law, Bengaluru, the last time Pakistan took India to the ICJ was over the Atlantique incident of 1999, when India shot down a Pakistani Breguet Atlantic maritime patrol aircraft.
Then, the ICJ refused to get involved in the matter, citing a 1974 declaration by India that the ICJ would not have jurisdiction over internal matters or over matters to do with dealings between present or former Commonwealth nations.
“At that time, the ICJ rejected their petition because the ICJ jurisdiction comes either through a mutual agreement between parties, or where there is a treaty and where the treaty provides the ICJ with jurisdiction. [In the first case], parties have to give a declaration beforehand accepting the jurisdiction of the ICJ,” says Shiju.
He says that the ICJ is unlikely to have jurisdiction in this dispute, although Pakistan is likely to try to move the ICJ over alleged human rights violations by India in Jammu and Kashmir.
In the case of Kulbhushan Yadav, however, the ICJ was able to take up the matter because both India and Pakistan were signatories to the Vienna Convention with regards to the principal of granting consular access.